The court's interpretation of Order 9, Rule 6 and its decision on whether the defendant can take part in the trial after being proceeded against ex parte.

Pollock, J G T—After all the defendants had filed their written statements in the lower Court, the case was adjourned on 29th April 1942 for want of time to 26th June 1942 for the settlement of issues. On that date all the defendants were absent and the Court decided under Order 17, Rule 2 read with Order 9, Rule 6 to proceed ex parte against the defendants. Subsequently, defendant 3 applied under Order 9, Rule 7 to be heard in answer to the suit as if he had appeared on the day fixed. The lower Court held that the alleged facts on which defendant 3 relied were false and rejected his application. The question is purely a question of fact, and there is no ground for interfering in revision with that finding.

2. The question, however, remains whether this defendant can take any further part in the trial. Under Order 9, Rule 6 the Court decides to proceed ex parte, and the question is whether this means that it proceeds ex parte for the rest of the suit or only until the defendant re-appears. The latter is the more popular view: see Mannu v. Tulsi,1922 AIR(All) 33, Bhagwat Prasad v. Mahomed Shibli, 1922 AIR(All) 110, Venkatasubbiah v. Lakshminarasimham, 1925 AIR(Mad) 1274, Pattabirama Ayyangar v. Neli Chetti, 1927 AIR(Mad) 1197, Perumal v. Kondama, 1939 AIR(Mad) 385 and Harba v. Chandrabhaga, 1931 AIR(Nag) 122; for the contrary view see Gangaram v. Deomal,1929 AIR(Sind) 46. On the whole I am inclined to take the view that the Court proceeds ex parte until the defendant re-appears. There is no clear provision in the Code that the defendant is subsequently debarred from appearing in the case, and in the absence of any such provision I accept the more popular view stated above. It has then to be decided what the defendant may claim to do when he re-appears. I am unable to gather what exactly the Court allowed in Harba v. Chandrabhaga, 1931 AIR(Nag) 122. In the present case, unlike most if not all of the cases cited above, written statements were filed by the defendants and therefore, I think, issues should have been framed. Under Order 14, Rule 1(6) issues need not be framed where the defendant at the first hearing of the suii makes no defence, but this implies that, if he does put in a defence, issues should be framed. In my opinion, therefore, the Court should have framed issues on 26th June 1942 and then have taken evidence on those issues. I do not think that the defendant, against whom the case is proceeding ex parte, can demand that the case should go back to a stage which has already passed and I doubt if I should have taken the view expressed in Harba v. Chandrabhaga, 1931 AIR(Nag) 122, though I am not sure what exactly the decision was. In the view that I take, issues in the case must be framed and it will be open to a defendant to take part in the trial thereafter. The application is partly allowed. Costs in this Court will be borne as incurred.

Final Result : Allowed